Disparity in grand jury report, email not proof of lies

Peter Hall, Of The Morning Call

Mike McQueary told a classmate he stopped the rape of a young boy in a Penn State locker room shower and reported it to the police in 2002.

But the actions McQueary said he took after walking in on that shocking scene aren't described in the grand jury presentment charging retired assistant football coach Jerry Sandusky with sexually assaulting children.

Lawyers familiar with grand juries say the discrepancy doesn't mean McQueary lied to the grand jury or that his email to a classmate describing "discussions with police" was fabricated to deflect the massive criticism he has received for not doing more.

Grand juries operate in a secretive and deliberately one-sided process designed to help prosecutors assemble cases against suspects. The witnesses are chosen by the prosecutor, their testimony is limited by the prosecutor's questions and remains sealed until the charges go to court.

"No one can know and no one will know until an eventual trial, if ever, what Mike McQueary said to the grand jury," said criminal defense attorney Phil Lauer of Easton.

The email from McQueary to a classmate was first obtained by The Morning Call and describes McQueary's frustration at the barrage of criticism he has received since being identified as an eyewitness to Sandusky's alleged rape of a young boy.

"I did stop it, not physically ... but made sure it was stopped when I left that locker room," McQueary said in the email, adding, "I did have discussions with police and with the official at the university in charge of police."

The grand jury presentment, by contrast, says McQueary walked into the locker room on a Friday night and saw a naked boy, who he estimated to be 10 years old, with his hands against the wall being subjected to anal intercourse by a naked Sandusky.

Distraught, McQueary went to his office and called his father, who told him to leave the building and come to the father's house, the presentment says. Together, it says, McQueary and his father decided McQueary had to report what he saw to coach Joe Paterno.

Over the course of the next two days, the presentment says, McQueary reported the alleged assault to Paterno, athletic director Tim Curley and university Vice President Gary Schultz, who oversaw the university police. Curley and Schultz are charged with failing to report the abuse and perjury for allegedly lying to the grand jury.

On Wednesday, both university police and State College police said they never received a report of sexual assault from McQueary. And the Patriot-News newspaper of Harrisburg reported that a handwritten statement McQueary gave to police during the grand jury investigation did not mention taking action to stop the alleged rape or contacting police.

State Attorney General Linda Kelly said in a Nov. 5 statement that despite McQueary's eyewitness report, the assault was never reported to any law enforcement or child protective agency.

A spokesman for the attorney general's office, Nils Frederiksen, declined to discuss the details of McQueary's grand jury testimony.

Efforts to contact McQueary and his attorney Wednesday were unsuccessful.

Even if McQueary told the grand jury he stopped the assault and contacted police, it might simply have not been included in the presentment.

"A prosecutor can put [into a presentment] as much or as little evidence presented to a grand jury as he wants, as long as it is sufficient to prove probable cause that a crime was committed and the accused was the one who committed it," said Seth Weber, a retired federal prosecutor.

It's also possible that the prosecutor in charge of the proceeding never asked whether McQueary tried to stop the assault or called police.

"The grand jury hears only the evidence that the prosecutor wants them to hear," said criminal defense attorney Gary Asteak of Easton.

Of course, the lawyers said, McQuery could have lied then or could be lying now. The grand jury presentment makes the unusual notation that the panel found McQueary's testimony to be "extremely credible."

"That was one of the things that jumped out to me," Asteak said. "They are taking his testimony as virtual gospel."

The disconnect between the grand jury presentment and McQueary's email statement could expose chinks in the state's case for defense attorneys to exploit, said former Attorney General Ernie Preate Jr.

"It's a serious matter when your principal witness is now saying something different than what is reported in the grand jury presentment," Preate said.